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• Special education programs in Kentucky are protected by both federal and state law. However, state law can never limit federal protections. 
• Under both federal and state law, school districts must provide each student with a “free appropriate public education” (FAPE), regardless of disabilities.

• Children between 3 and 21 years old with a qualifying disability who have not received a high school diploma are able to receive special education and related aid. 
• Eligible children are those who have any of the following disabilities: 
• mental disability, 
• hearing impairments (including deafness), 
• visual impairments (including blindness), 
• speech or language impairments, 
• emotional-behavioral disability, 
• orthopedic impairments, 
• autism, 
• traumatic brain injury, 
• multiple disabilities, 
• other health impairments, 
• specific learning disabilities, 
• developmental delay.

20 U.S.C. Sec. 1401(3); 34 C.F.R. Sec. 300.8; K.R.S. Sec. 157.200; 707 K.A.R. Sec. 1:280; 707 K.A.R. Sec. 1:290.

• Under both federal and state law, school districts must provide each student with a disability with a free appropriate public education (FAPE). 
• This includes special education and related services that: 

1. Meet appropriate standards,
2. Are provided without charge,
3. And conform to the child’s individualized education program (IEP).

20 U.S.C. Sec. 1401(9); 34 C.F.R. Sec. 300.17; 707 K.A.R. 1:320 Sec. 1(1).

• School districts cannot require that exceptional children meet the same academic requirements as their non-disabled peers to receive a high school diploma. OAG 78-169. 
• Specialized education involves specially-designed instruction and other related services aimed at meeting the child’s individual educational needs. 
• “Specially-designed instruction” means “adapting, as appropriate to the needs of an eligible child . . . the content, methodology, or delivery of instruction to address the unique needs of the child that result from the child’s disability and to ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children.” 34 C.F.R. Sec. 300.39(b)(3).

• School districts are required to provide “related services” to eligible children that require more than specialized instruction. 20 U.S.C. Sec. 1401(9); K.R.S. Sec. 157.200(4).
• Related services “enable a disabled child to remain in school during the day,” which allows the child to maximize his or her educational experience. Cedar Rapids Comm. School Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 73 (1999). 
• In Kentucky, related services may include: 
• early identification and assessment of disabilities, 
• speech-language and audiology services, 
• psychological services, 
• physical and occupational therapy, 
• recreation services, including therapeutic recreation, 
• counseling services, including rehabilitation counseling, 
• orientation and mobility services, 
• medical services for diagnostic or evaluation purposes, 
• school health services, 
• social work services, 
• parent counseling and training.

20 U.S.C. Sec. 1401(26); K.R.S. Sec. 157.200(4).

• The provision of “medical service for diagnostic or evaluation purposes” does not include those medical services that must be performed by a licensed physician. Cedar Rapids Comm. School Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 73-74 (1999). 
• The United States Supreme Court has ruled that “continuous nursing services” provided to a quadriplegic student are “related services” that must be provided to the disabled student. Cedar Rapids Comm. School Dist. v. Garret F. ex rel. Charlene F., 526 U.S. 66, 73-74 (1999).

• The state education agency and the local school district are both responsible for ensuring special education services by providing certified and trained special education teachers. K.R.S. Sec. 157.250; 16 K.A.R. 4:020. 
• Under federal and state law, the local school district is sometimes referred to as the “local educational agency” (LEA). School districts are responsible for managing the day-to-day operations of their special education program. 707 K.A.R. 1:290 Sec. 1(1).
• If the school district fails, the Kentucky Department of Education’s Division of Learning Services (DLS) is ultimately responsible for providing special education services. 20 U.S.C. Sec. 1412(a); K.R.S. Sec. 157.220.

• The child’s educational setting will be based on the IEP. 
• In all cases, the goal is that the child be educated in the least restrictive environment (LRE). 
• Children with disabilities must be educated and have access to the same general curriculum and extracurricular activities as their non-disabled peers. 34 C.F.R. Sec. 300.114; 707 K.A.R. 1:350 Sec. 1(8), (10). 
• However, when a child is unable to receive an appropriate education in a regular environment, even with modifications, supplementary aids, and services, then the child may be placed in a special or self-contained classroom. 707 K.A.R. 1:350 Sec. 1(1). 
• Specialized education settings can include: 
• regular classes, 
• special classes, 
• self-contained classes, 
• resource rooms, 
• special schools, 
• and private schools. K.R.S. Sec. 157.224(3)(b); K.A.R. 1:350 Sec. 1(3). 
• If the child is unable to attend school for more than five consecutive days, the child may also receive special educational instruction at home or in a hospital. K.R.S. Sec. 157.270; 704 K.A.R. 7:120 Sec. 2(6). 
• An application for at-home or hospital instruction must be supported by documentation of the child’s needs, including medical or mental health evaluation information. 704 K.A.R. 7:120 Sec. 2(3). 
• If the child qualifies for at-home or hospital instruction, then he or she is entitled to receive at least two visits per week, each consisting of at least one hour of instruction from a certified teacher. K.R.S. Sec. 157.270. 
• The child may receive special education from another school district or private school when the local school district is unable to provide specialized education for the child’s disability. K.R.S. Sec. 157.280(1). 
• The local school district must provide transportation services for the child to attend school in another district or private school. If the school district determines that a private school is needed to meet the child’s needs, the costs of such schooling must be paid for by the school district. K.R.S. Sec. 157.280(2). 
• In some cases where the local school district determines that the child is not eligible for special education or fails to provide the child with an appropriate education, a parent may decide to place their child in a private school to receive specialized education. The parent is entitled to reimbursement for reasonable tuition expenses provided the child meets IDEA’s eligibility requirements and the child’s placement in a private school setting is appropriate. 707 K.A.R. 1:370 Sec. 1(2); Forest Grove School Dist. v. T.A., 129 S. Ct. 2484 (2009).

• The process for receiving specialized education and related services includes: 
• identification of a child who possibly needs special education, 
• evaluation of a child by a school district to determine his or her eligibility for special education, 
• development of an IEP if a child is eligible for special education, 
• providing education and related services to the child according to his or her IEP, 
• and periodical review of an IEP and reevaluation of a child to determine ongoing needs. 
• Parents, teachers, and local school district personnel may refer the child for a special education evaluation. 
• The term “parent” may include a biological parent; adoptive parent; legal guardian; foster parent; or a relative who is legally responsible for the child’s welfare. 707 K.A.R. 1:280 Sec. 1(43).
• If a parent believes that his or her child is eligible for special education, they should quickly contact their school or local school district to refer their child for evaluation.
• Ultimately, the local school district decides whether a child is eligible for specialized education. 707 K.A.R. 1:310.
• The school district will conduct an evaluation to identify the child’s disability, evaluate how the disability adversely affects the child’s educational progress, and assess the child’s individualized needs for special instruction.
• The school district must complete the evaluation within sixty school days after it receives parental consent to conduct the evaluation. 20 U.S.C. Sec. 1414(a)(1)(C); 707 K.A.R. 1:320 Sec. 2(3)(a)-(b).
• The evaluation process consists of testing and observations.
• The testing component includes both standardized and non-standardized tests. 707 K.A.R. 1:300 Sec. 4(6)-(7).
• Standardized tests are “prepackaged” and uniform for all test takers.
• Non-standardized tests are specifically designed to assess individualized educational needs.
• All tests or evaluations should be administered in the language or other means of communication that the child best understands. 707 K.A.R. 1:300 Sec. 4(2).
• The school will conduct at least two observations before determining a child’s eligibility for specialized education. DLS Policy Letter #2010-11-01.
• The school must use observational techniques that are tailored to the child’s needs and suspected disability.
• However, DLS requires that some observations be done for all evaluations, regardless of the suspected disability. The use of these observations should vary depending on the child’s age, educational needs, and suspected disability. DLS Policy Letter #2010-11-01.

1. The school must collect observational data from the following people: parents, teachers, and related services providers. 34 C.F.R. Sec. 300.305(a); 707 K.A.R. 1:300 Sec. 4(14).

2. Behavioral observations must be considered in the evaluation process. 707 K.A.R. 1:310 Sec. 1(3)(i). Behavioral observations include observing the child’s reaction to different instructional and teaching strategies and determining the “triggers” to positive and negative behavior in a classroom setting. DLS Policy Letter #2010-11-01.

3. Other potential sources of observational data may include the child’s aptitude and achievement tests, physical condition, and adaptive behavior. 707 K.A.R. 1:310 Sec. 1(3).

• After analyzing the tests, evaluations, and observational data, the school district will issue an evaluation report and eligibility determination to the child’s parent. 707 K.A.R. 1:310 Sec. 1(1).
• A child will not be eligible for specialized education if the school district determines that the child’s educational needs are due to a lack of instruction in reading, a lack of instruction in math, or limited English proficiency. 20 U.S.C. Sec. 1414(b)(5); 34 C.F.R. Sec. 300.306(b); 707 K.A.R. 1:310 Sec. 1(2).

• If the school district determines that the child is eligible for specialized education, then the school district must organize a meeting to develop an IEP for that child within thirty days. 707 K.A.R. 1:310 Sec. 1(6). 707 K.A.R. 1:320 Sec. 2(4).
• The IEP outlines the child’s individualized needs for education and related services. It is considered to be the cornerstone of specialized education as provided under IDEA.
• A parent of the child is required to attend the IEP meeting. 707 K.A.R. 1:320 Sec. (3)(1)(a). The school district must provide the parent with at least seven days notice for the scheduled IEP meeting. 707 K.A.R. 1:320 Sec. (4)(1).
• The IEP team meeting will also include at least one regular education teacher, at least one special education teacher, and a district representative. Other participants, when appropriate, may include psychologists, therapists, educational specialists, related service providers, or the child. 707 K.A.R. 1:320 Sec. 3(1)(a)-(h).
• The IEP outlines the goals, placements, and services tailored to best help the child benefit from specialized education. The IEP for each child includes statements or explanations of the following:
• the child’s current levels of academic and functional performance,
• how the child’s disability affects his or her academic progress,
• measureable annual goals designed to meet the child’s needs,
• any benchmarks or short-term objectives deemed necessary,
• specially-designed instruction needed to meet the child’s needs,
• related and supplementary services needed to meet the child’s needs,
• modifications and supports needed to help the child achieve annual goals and participate in the general curriculum and extracurricular activities with non-disabled children,
• accommodations needed for the child to participate in state or district-wide testing,
• any assistive devices (not medical devices) required to increase, maintain, or improve the child’s functional capabilities,
• why, to the extent called for in the IEP, the child will not participate in the general curriculum and extracurricular activities with non-disabled children,
• the time, place, frequency, and duration of any intervention services the child will receive,
• how progress towards meeting goals will be measured,
• when periodic reports of the child’s progress will be issued.

707 K.A.R. Sec. 7(1); 707 K.A.R. 1:320 Sec. 5(7).

• For children who are in the eighth grade, or at least 14 years old, the IEP will include a statement regarding transition services needed to help the child transition to post-secondary life (i.e., life after high school). 707 K.A.R. 1:320 Sec. 7(1).
• These services may focus on transitioning the child to post-secondary education (i.e., community college, college, or technical school); vocational training; employment; or independent living. K.R.S. Sec. 157.200(5).
• By the time the child is 16 years old, the IEP must include appropriate and measureable post-secondary goals and provide the transition services needed to help the child achieve these goals. 707 K.A.R. 1:320 Sec. 7(2)(a)-(b).
• Parents are entitled to a free copy of the child’s IEP. 707 K.A.R. 1:320 Sec. 4(8).
• Parental consent is required before a child receives specially-designed instruction or related services under the initial IEP. 707 K.A.R. 1:340 Sec. 4(5). However, once an IEP is in place for the child, the school district may conduct a reevaluation of the IEP without consent if the parents are non-responsive to the school’s “reasonable efforts” to obtain their consent. 707 K.A.R. 1:340 Sec. 5(7)(a)-(b).
• If a child with an existing IEP moves from one school district – whether outside or inside Kentucky – to another school district inside Kentucky within the same school year, then the new school district must provide the child with specialized education and services that compare to the existing IEP. 707 K.A.R. 1:320 Sec. 6(1)-(2). The new school district may ultimately adopt or modify the existing IEP or develop a new IEP if the child meets the state’s eligibility requirements.
• Once an initial IEP is established, the child’s IEP team will review it annually to determine whether the child is meeting its annual goals. 707 K.A.R. 1:320 Sec. 2(6)(a).
• The child’s overall educational progress will be reevaluated at least once every 3 years to determine if any additions or modifications are needed to the child’s special education, related services, or goals. 707 K.A.R. 1:300 Sec. 4(18)(c). The child may be reevaluated more frequently – but no more than once a year unless otherwise agreed – at the request of the child’s parents, teachers, or school district. 707 K.A.R. 1:300 Sec. 4(16)-(19).
• If the parent disagrees with the school district’s evaluation report and determination of eligibility, the parent can request a free independent educational evaluation (IEE). 707 K.A.R. 1:340 Sec. 2(3). The school district may either grant the parent’s request for an IEE at public expense or initiate a due process hearing to demonstrate that the school district’s evaluation was appropriate.
• If a due process hearing concludes that the school district’s evaluation was appropriate and reliable, then the parents can still obtain an IEE, but it will no longer be at public expense. 707 K.A.R. 1:340 Sec. 2(7). In the end, if the parents obtain an IEE that meets the school district’s criteria, the IEE’s results must be considered by the school district when making its eligibility determination for the child. 707 K.A.R. 1:340 Sec. 2(8).

• If the parent disagrees with the IEP’s terms or believes that the school is not implementing or following the IEP as required by law, the parent may initiate the grievance procedures set forth in 707 K.A.R. 1:340. Parents must follow these administrative complaint procedures before filing a lawsuit in state or federal court to enforce their child’s right to a FAPE., giving the school district or the Department of Education the opportunity to resolve the grievance before courts get involved. 
• The child will remain in his or her current educational placement until the complaint process ends. 707 K.A.R. 1:340 Sec. 11(3).
• The parent may file a written complaint with the Kentucky Department of Education. The complaint must include a statement of the alleged violations, supporting facts, identifying information for the child, a proposed resolution to the problem, and information that indicates the violation(s) occurred within one year of the complaint. 707 K.A.R. 1:340 Sec. 7(3).
• The Department of Education has sixty days from the date it receives the complaint to conduct an investigation and issue a written decision that specifies the reasons for the decision. 707 K.A.R. 1:340 Sec. 7(1).
• If the parent or school district disagrees with the Department’s decision, it may be appealed to the Commissioner of the Kentucky Department of Education. Such an appeal must be filed within fifteen business days of the party receiving the decision. 707 K.A.R. 1:340 Sec. 7(5).
• Due process hearings may be requested when a parent’s complaint relates to the “identification, evaluation, or educational placement of a child with a disability” or the school district’s refusal to modify or change the child’s IEP. 707 K.A.R. Sec. 1:340 Sec. 8(2).
• The parent may request a due process hearing by sending a “Due Process Hearing Request Form” to the Kentucky Department of Education. The request form must include the child’s name, address, and school. The form must describe the nature of the problem, facts relating to the problem, and the parent’s proposed resolution to the problem. 707 K.A.R. Sec. 11(1)(a)-(e). This form must also be sent to the child’s local school district.
• The parent is entitled to receive his or her child’s educational records “without unnecessary delay” before a dispute resolution meeting or a due process hearing. 707 K.A.R. 1:360(1).
• Within fifteen days of receiving the due process hearing request form, the school district will arrange a dispute resolution meeting with the parents and any other members of the child’s IEP team who have knowledge of the facts stated in the form. 707 K.A.R. 1:340 Sec. 10(1). The purpose of this meeting is to give the parties an opportunity to resolve the problem before proceeding to a due process hearing.
• A parent’s due process hearing request form may be dismissed if the parent fails to participate in the resolution meeting. However, both parties can agree to waive the meeting. 707 K.A.R. 1:340 Sec. 10(3).
• The resolution meeting must be completed within thirty days. 707 K.A.R. 1:340 Sec. 10(6). Any agreement reached in the dispute resolution meeting is legally binding and enforceable. Therefore, the parent and a school district representative with decision-making authority must sign the agreement. Either party has the right to void the agreement within three business days after signing the agreement. 707 K.A.R. 1:340 Sec. 10(4)(5).
• Instead of the dispute resolution meeting, the parents and school district may voluntarily agree to use a mediation process provided and paid for by the Department of Education.
• Mediation is a confidential process that is intended to resolve the problem through a trained and impartial mediator. Unlike the dispute resolution meeting, the parent’s participation in the mediation process is completely voluntary. 707 K.A.R. 1:340 Sec. 9(1)(a)-(c), (5). The parents will still have the right to a due process hearing. 707 K.A.R. 1:340 Sec. 9(1)(b).
• Once mediation is initiated, the process must be completed within sixty days. If an agreement is reached between the parties, it will be legally binding and enforceable. 707 K.A.R. 1:340 Sec. 9(6).
• If the dispute resolution meeting is waived or if the parties fail to reach an agreement at the resolution meeting or mediation, the hearing officer has forty-five days to hold the due process hearing, reach a final decision, and send copies of the final decision to both parties. 34 C.F.R. Sec. 300.515. The forty-five day timeline begins after one of the following occurs:
• the school district fails to resolve the complaint within thirty days of receiving the hearing request;
• the school district fails to hold a resolution meeting within fifteen days of receiving the hearing request;
• the parties agree in writing to waive the resolution meeting;
• the parties agree in writing, after the meeting or mediation begins, that no agreement is possible; or
• one of the parties withdraws from the mediation process.

707 K.A.R. 1:340 Sec. 10(6),(7),(11)(12).

• A parent has many rights at the due process hearing, including:
• the right to be informed of any free or low-cost legal services in the area, 707 K.A.R. 1:340 Sec. 8(4)
• the opportunity to respond to the school district’s arguments,
• to present evidence
• to cross-examine witnesses before a fair and impartial hearing officer. K.R.S. Sec. 13B.080(2),(4).
• If the parent wishes to appeal the hearing officer’s decision, he or she must file an appeal with the Exceptional Children Appeals Board (ECAB) by mailing the request to the Kentucky Department of Education within thirty days of the hearing officer’s decision date. 707 K.A.R. 1:340 Sec. 12(1).
• The Department of Education considers the decision of the ECAB to be final. However, the parent may appeal that decision in state or federal court. The appeal must be filed with a state or federal court within ninety days from the date of ECAB’s decision. 34 C.F.R. Sec. 300.515(b).

• Students enrolled in a special education program may be disciplined for violating the student discipline code, even if their misbehavior is a manifestation of the disability.
• The school may suspend the child or place the child in an alternative educational setting for no more than ten consecutive school days. 707 K.A.R. 1:340 Sec. 13(2). 
• Suspensions, expulsions, and interim alternative placements that exceed ten days are considered “changes in placement,” which require a manifestation determination meeting. 707 K.A.R. 1:340 Sec. 14(1). 
• If, however, the child seriously injures someone or possesses a weapon or drugs on school grounds, then the child may be removed to an interim alternative setting for no longer than forty-five days without a manifestation determination meeting. 20 U.S.C. Sec. 1415(k)(1)(G); 707 K.A.R. 1:340 Sec. 14(5)(a)-(c).
• The manifestation determination meeting is a meeting between the child’s IEP team to determine: 
• (i) if the child’s misbehavior had a “direct and substantial relationship to the child’s disability” 
• (ii) if the child’s misbehavior was the direct result of the school district’s failure to implement the IEP. 707 K.A.R. 1:340 Sec. 14(1). 
• If the team members find that the answer to both questions is “no,” then the child may be disciplined in the same manner and for the same duration as non-disabled children. 707 K.A.R. Sec. 13(4). 
• If the meeting members find that the answer to either of these questions is “yes,” then the school district must develop or modify a behavioral intervention plan for the child and return the child to his or her educational placement unless the parent agrees to placement modification. 707 K.A.R. 1:340 Sec. 14(4)(a)-(b). 
• If the team denies that the child’s behavior is a manifestation of the disability, the parent may appeal that determination by requesting a due process hearing. 707 K.A.R. 1:340 Sec. 15(1). The appeal must be resolved within thirty school days of the date requested, during which time the child will remain in the alternative placement. 707 K.A.R. 1:340 Sec. 15(4)-(5).

• The school district must allow a parent to inspect and review any educational records related to his or her child. 
• If the parent requests educational records before any meeting regarding the IEP, dispute resolution meeting, or due process hearing, then the school must provide the records “without unnecessary delay.” 
• The school must give the parent his or her child’s educational records within forty-five days after the parent makes the request. 707 K.A.R. 1:360 Sec. 1(1). 
• The school may charge a fee for copies unless the fee prevents the parent from exercising his or her right to inspect and review the records. No fee may be charged for searching or retrieving the records requested. 707 K.A.R. 1:360 Sec. 5(1)-(2).
• If a parent believes that information contained in his or her child’s educational records is inaccurate, misleading, or violates the privacy or other rights of the child, the parent may ask the school to correct the records. 707 K.A.R. 707 1:360 Sec. 6(1). The school must respond to the parent’s request within ten school days. 
• If the school refuses to correct or amend the records, the parent may request a hearing with the school district. 707 K.A.R. 1:360 Sec. 6(2); 702 K.A.R. 1:140 Sec. 1-2. The school district must arrange the hearing within thirty days after receiving the parent’s request. 
• The school should promptly be informed when a court order prohibits a parent from accessing the child’s educational records. If the school is not informed of the court order, then it may presume that a child’s parent has the authority to inspect and review the records. 707 K.A.R. Sec. 1:360 Sec. 1(3).